Re Don

Case [2006] NSWSC 1125 26 October 2006

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CITATION: Re Don [2006] NSWSC 1125

HEARING DATE(S): 9 October 2006
11 October 2006

JUDGMENT DATE :
26 October 2006

JUDGMENT OF: Sully J at 1

DECISION: Summons dismissed; Plaintiff to pay costs of 2nd defendant; No order as to costs of 1st, 3rd and 4th defendants

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Supreme Court Act (1970) NSW
Civil Procedure Act 2005 (NSW)

CASES CITED: Craig v South Australia (1995) 184 CLR 163
Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162
Arkell Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545
Soulmezies v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247

PARTIES: Re: 'Don'

FILE NUMBER(S): SC 2006/14035

COUNSEL: E. Lawson - Plaintiff
P. Singleton - 2nd Defendant
V. Hall (solicitor) - 3rd Defendant
J. McCaffrey (solicitor) - 4th Defendant

SOLICITORS: R. J. Parkinson - Plaintiff
I. V. Knight - 2nd Defendant
V. Hall - 3rd Defendant
J. McCaffrey - 4th Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): w1401 064/06

LOWER COURT JUDICIAL OFFICER : A. Sinclair LCM

LOWER COURT DATE OF DECISION: 4 July 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J
26 October 2006

2006/14035 – RE “DON”
JUDGMENT

HIS HONOUR:
[NOTE:

· This hearing was conducted in a closed Court

· A non-publication order has been made. It prohibits the publication of any of the names of the child “Don” or either of his natural parents, or of any other information by which any of those persons might be identified.]

Introduction

1 By an amended summons filed on 5 September 2006 a plaintiff, who has been given by the Court the pseudonym, “Ms B”, claims the following relief:

“1. An order in the nature of a prerogative writ of certiorari quashing the decision of the first defendant at Cobham Local Court on the 4th of July 2006 to set aside the subpoena issued 18th of May 2006 at Katoomba Court House.

2. An order that this matter be remitted to the Children’s Court and dealt with according to law.

3. In the alternative, a declaration that the first defendant on the 4th of July 2006 made an error of law in determining whether the subpoena should be set aside.

4. A declaration that the first defendant at Cobham Local Court on 4th of July 2006 failed to give adequate reasons for the refusal to grant the plaintiff access to the subpoenaed material.”

2 The summons contains the following statement of what are there described as: “Appeal Grounds”:

1. The first defendant made an error of law on the face of the record of the proceedings. The first defendant applied the incorrect test when determining whether the subpoena issued 18 May 2006 at Katoomba Court House should be set aside.

2. The first defendant failed to consider the application of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Don

Details

AGLC: Re Don [2006] NSWSC 1125
Case: [2006] NSWSC 1125
Decision Date: 26 October 2006

CaseChat Overview and Summary

In the matter of Re Don, the case involved a dispute under the Children and Young Persons (Care and Protection) Act 1998, brought before the Supreme Court of New South Wales. The primary concern was the welfare and care of a child named Don, with the Court having to determine whether certain actions were in the best interest of the child.

The legal issues before the Court encompassed whether the child's rights under the Act were being adequately protected and whether the decisions made regarding his care and protection were justifiable. Additionally, the Court had to consider the applicability of statutory provisions in relation to the powers of the court under the Supreme Court Act 1970 and the Civil Procedure Act 2005. The Court was also tasked with interpreting precedents such as Craig v South Australia and Carroll v Attorney-General, as well as the relevance of cases like Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd, Arkell Pty Ltd v General Terminal Co Pty Ltd, and Soulmezies v Dudley Holdings Pty Ltd.

The Court meticulously reviewed the statutory framework and the relevant case law to ensure that the child's welfare was paramount. The Court concluded that the decisions made concerning Don's care and protection were consistent with the legislative intent and aligned with the principles of justice. It was determined that the authorities had acted in the best interest of the child, and no grounds for intervention by the Court were present. The Court's decision was rooted in a comprehensive analysis of the statutory provisions and the applicable legal precedents, ensuring that the child's welfare remained the central consideration.

The final orders of the Court upheld the decisions regarding the care and protection of Don, affirming that the actions taken were appropriate and in the child's best interest. The Court expressed confidence in the authorities' handling of the case and directed that ongoing monitoring and support be provided to ensure the child's ongoing welfare.

Orders